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UNITED STATES OF AMERICA. ! 



POWERS 

OF THS 



FEDEEAL GOVERNMENT 



OVEE 



By ANDREW J. WILCOX. 



BALTIMORE: 

1862. 




f2 



Entered according to the Act of Congress, in the year 1862, 

By Asdrew J. Wilcox, 

tn the Clerk's Office of the District Court fb the District of Maryland. 



THE POWERS 



OP THE 



GOVERNMENT, 



r a former publication, a Remedy for the Defects of the Gon- 
stitution, I endeavored to show what power the Government had 
over the subject of slavery, as granted to it by the people, in the 
particular clauses of the Constitution, bearing on that subject. 

Since then, the President has issued his proclamation; the 
first four and last paragraphs of which is in the words followiag: 

'*1, Abraham Lincoln, President of the United States of 
America, and Commander-in-Chief of the Army and Navy there- 
of, do hereby proclaim, that hereafter, as heretofore, the war will 
be prosecuted for the object of practically restoring the Consti- 
tutional relations between us and the people thereof, in which 
States that relation is or may be suspended or disturbed." 

"That it is my purpose, upon the next meeting of Congress, 
to again recommend the adoption of a practical measure, tender- 
ing pecuniary aid to the free acceptance or rejection of all the 
Slave States, so called, the people whereof may not be in re- 
bellion against the United States, and which States may then 
be in rebellion against the United States, and which States may 
then have voluntarily adopted, or thereafter may voluntarily- 
adopt, immediate or gradual abolishment of slavery within 
their respective Citifes, and that the efforts to colonize persons 
of African descent, with their consent, upon this Continent or 
elswhere, with th^ pr^VioMy obffiined consent of the Govern- 
ments existing then will be continued." 



^^That on the first day of Jaivaary in the year of our tord one 
thousand eight huTidred and sixty-three, all persons held as slaves 
within any State or designated part of a State, the people lohei^of 
shall then he in rebellion against the United States, shall be thence- 
forward and forever free; and that the Fccecutive Government of 
the United States, including the military and naval authority 
thereof, will recogonize and maintain the freedom of such persons. 
and will do no act or acts to repress mich persons, or any of them, 
in any efforts that they may make for their actual freedom." 

Thai the Executive will, on the 1st day of January aforesaid, 
by proclamation, designate the States and parts of States, if any, 
in which the people thereof respectively shall then be in rebellion 
against the United Slates; and the fact that any State or people 
thereof shall, on that day, be in good faith represented in the 
Congress of the United States, by members chosen thereto at 
elections wherein a majority of the qualified voters of such 
States shall have participated, shall, in the absence of strong 
counteracting testimony, be deemed conclusive evidence that 
such State, and the people thereof, are not in rebellion against 
the United States; that attention is hereby called to an act of 
Congress, entitled "An Act to make an additional Article of 
War/' approved March 13th, 1862, &c. 

Then follows a paragraph containing the Article of War pro- 
viding for the non-return of fugitive slaves, those sections of the 
Confiscation Act which hold out inducements for negroes to be- 
come fugitives from their masters, and another, saying that the 
"Executive will, in due time, recommend that all citizens of 
the United States, svho shall have remained loyal thereto 
throughout the rebellion, shall, upon the restoration of the 
constitutional authority between the United States and their re- 
spective States and people — if the relations shall have been sus- 
pended or disturbed, be compensated for all losses by acts of the 
United States, including the loss of slaves." 

I shall take it for granted, that our Constitution was made for 
all contingencies, at least for a contingency like the present. In 
the preamble it is said, that the Constitution was "ordained and 
established to form a more perfect Union, establish Justice, insure 



domestic tranquility, provide for the common defence, "promote the 

general welfare," &c. 

This language is either false, or the idea that the Constitution 
was not intended to meet a case like the present, and that the 
lex necessitate must govern is false. 

Although the President does not say by virtue of what au- 
thority he issues this proclamation, and although ho does not 
even say that it was* done by virtue of any authority, yet, I 
presume, it was intended to have been issued constitutionally, 
and under the 1st clause of the 8th section of the 1st article, in 
these words; "To lay and collect taxes, duties, imposts and ex- 
cises; to pay the debts and provide for the common defence and 
general welfare of the United States; but all duties, imposts and 
excises shall be uniform throifghout the United States." 

This power was granted by the people to the Congress, and 
not the President of the United States. The precise words used 
are "that the Congress shall have power to lay and collect taxes,'' 
&c. The first question that would arise is: Can Congress dele- 
gate powers granted \o it by the people to auothe)- branch of the 
government? On this question I do not think there can possibly 
be any difference of opinion, but will suppose that it could, then 
then the question would arise: Has it done so? This must bo 
answered in the negative. But I will 'again make the supposi- 
tion, that Congress will legalize the acts of the President, then 
the question would arise: Has Congress the power, under this, 
clause, to emancipate slaves? 

On this point, Patrick Henry, in the Virginia Convention, 
said that "With respect to that part of the proposal, whicli says 
that every power not granted remains with the people, it must 
be ^rei;iOMs to adoption or it will invoh'e this country in inev- 
itable destruction. To talk of it as a thing subsequent; not as 
one of your inalienable rights; is leaving it to the casual opinion 
of the Congress who shall take up the consideralion of that 
matter. They will not reason with you about the effect of this 
Constitution. They will not take the opinion of this coramitiee 
concerning its operation. They will construe it as as they 
please. If you place it subsequently, let me ask the conse- 



6P 

qnences. Among ten thousand implied powers wtiicfi fhe^ fii&y 
assume, they may, if we be engaged in war, liberate every one 
of your slaves if they please, and this must and will he done by 
men, a majority of whom have not a common interest with you." 

"They will therefore have no feeling for your interests. It has 
been repeatedly said here, that the great object of national Gov- 
ernment was national defence. That poiver lohich is intended 
for security and safety, may be rendered detestable and, oppres- 
sive. If they give powers to the General Goveroment to provide 
for the general defence, the means must be commensurate to the 
end. All the means in the possession of the people must be 
given to the Government, which is entrusted with the public 
defence. In this State there are 236,000 blacks and there are 
many in several other States. But there are few or none in the 
Northern States, and yet if the Northern States shall be of 
opinion that our number are numberless.. They may call forth 
every national resource," 

^'•May Congress not say that every black man must fight. Did we 
see a little of this last war? we were not so hard pushed as to 
make emancipation general. But acts of assembly passed that 
every slave who would go to the army should be free, another 
thing will contribute to bring this event about. Slavery is de- 
tested. We feel its fatal effects. We deplore it with all the 
pity of humanity. Let all these considerations at some future 
period press with full force on the minds of Congress. Let that 
urbanity, which I trust will distinguish America, and the ne- 
cessity of national defence; let all these things operate on their 
minds they loill search that paper and see if they havej)oioer of 
manumission. And have they not Sir? have they not power to 
])rovide for the ^'eneral defence and welfare? May they not ihinh 
that these call for the abolition of slavery? May they not pronounce, 
all slaves free, and will they not be warranted by that power.^ 
There is no ambigous implication or logical deduction. The 
paper speaks to' the point. They have the power in clear un- 
equivocal terms and will clearly and certainly exercise it. As much 
as I deplore slavery, I see thai prudence forbids its abolition. I 
deny that the general Government ought to set them free, be- 



f 

cause a decided majority of the States have not the ties of 

sympathy and fellow feeling for those whose interests would be 
affected by. their emancipation. The majority of Congress is 
to the north, and the slaves are to the south." 

"In this situation, I see a great deal of the property of the 
people of Virginia in jeopardy, and their peace and tranquility 
gone. I repeat it again that it, would rejoice my very soul thai 
every one of my fellow beings was emancipated. As we ought with 
gratitude to admire that decree of heaven, which has remembered 
us among the free, we ought to lament and deplore the necessity 
of holding our fellow men in bondage. But is it practicable by 
any human means to liberate them without producing the most 
dreadful and ruinous consequences? We ought to possess them 
in the manner we inherited them from our ancestors, as their 
manumission is incompatable with the felicity of our Country. But 
we ought to soften, as much as possible the rigor of their un- 
happy fate. I know that in a variety of particular instances, 
the legislature, listening to complaints, have admitted their 
emancipation. Let me not dwell on this subject. I will (jniy 
add that this as well as every other property of the people of 
Viginia, is in jeopardy and put in the hands of those who have 
no similarity of situation with us. This is a local matter and I 
can see no propriety in subjecting it to Congress," 

"With respect to subsequent amendments proposed by the wor- 
thy member I am distressed when I hear the expression. It is 
a new one altogether, and such a one as stands against every 
idea of fortitude and manliness in the States, or any one else. 
Evils admitted in order to be removed subsequeatly, and tyran- 
ny submitted to in order to be excluded by subsequent alteration 
are things totally new to me." 

Elliot's Debates on Fed. Constitution, page 533. 

It will be remembered, that Patrick Henry was one of the most 
violent of the opponents of the Constitution ; and on this occa- 
sion, being his last speech before the question was put to the 
House, used ail the rhetorical and logical powers of which he 
was capable, in making the strongest possible case against the 
Constitution, so that he may be considered as a prejudiced wit- 
ness. 



8 

The principal question in all the conventions was on the divi- 
sion of powers, between the State and Federal government. 
Thp friends of the Constitution claiming, as we shall hereafter 
sec, that (even without the amendments which have since been 
made, particularly the 9th and 10th here referred to) the gov- 
ernment was one of limited powers; that only such powers 
as were enumerated were intended to be granted, and that these 
powers could not be enlarged upon. Whilst the opponents of 
the Constitution, among the most formidable of whom was Pat- 
rick Henry, denied this position, and said, that the Constitu- 
tion, especially this and the 18th clause of this section and ar- 
ticle, granted to the government unlimited powers, and would 
effect a consolidation of the States. Patrick Henry, in this speech 
says, that i£ that part of the system, ''which says that every 
power not granted remains with the people," would be inserted, 
previous to the adoption of the Constitution, it would then be 
satisft'ctory even to those who agreed with him, and that the 
general government would not be able to assume any implied 
powers, which they would do, (even if the Constitution did 
not warrant the assumption) as it then was, and Congress could 
not then imply any power, under the power of providing for 
the general defence in time of war, to emancipate slaves. It 
was not the ti7ne luhen the amendments should be made, that 
would prevent, the general government from using this unlim- 
ited puwer, but it was the amendments themselves. Although 
this vgry amendment had been proposed by nearly all the con- 
ventions of which we have the proceedings, and which sat 
prior to Virginia, yet it was repeatedly said, in the Convention 
of that State, that these amendments never would be made. 
Another point here made was that although Patrick Henry de- 
plored slavery, and that it would rejoice his very soul to see all 
slaves emancipated, yet he thought it was not practicable by any 
human means to liberate them without producing the most dread- 
ful and ruinous consequences, would be altogether incompatable 
with felfcity of the country, and being a local matter, in subject- 
ing it to Congress under the Constitution, as it then was, would 
bo submitting to tyranny in order to afterwards exclude it by 
subsequent aitcratiou. 



9. 

Gov. Edmund Randolph, also a member of the Virginia Con- 
vention, in reply to Patrick Henry said, that. ''That honor- 
able gentlemen and some others have insisted that the abolition 
of slavery will result from it, and at the same tinie have com- 
plained that it encourages its continuation. 

The inconsistency proves, in some degree, the futility of their 
arguments. But if it be not conclusive, to satisfy the committee, 
that there is no danger of enfranchisement taking place, I beg 
leave to refer them to the paper itself. I hope that there is none 
here who, considering the subject in the calm light of phil- 
osophy, will advance an objection dishonorable to Virginia; that 
at the moment they are securing the rights of their citizens, an 
objection is started that there is a spark of hope that those 
unfortunate men, now held in bondage, may, by the operation 
of the General Government, be raade/ree. But if any gentleman 
be terrified by this agprehension let him read, the system.. I ask and 
I loill ask again and again till I be ansivered, {not by declamation) 
where is the part that has a tendency to the abolition of slavery? 
Is it the clause which says that 'Hhe migration or importation 
of such persons as any of the States now existing shall think 
proper to admit, shall not be prohibited by Congress prior to 
the year 1808. ' ' This is an exception from the power of reg- 
ulating commerce, and the restriction is only to continue till 
1808. Then Congress can, by the exercise of that power, pre- 
vent future importations; but does it affeet the existing state of 
slavery? Were it right here to mention what passed in convention 
on the occasion, I might tell you that the Southern States, even 
South Carolina herself, conceived this property to be secure by 
these loords. I believe whatever we may think here that there was 
not a member of the Virginia delegation loho had the smallest sus- 
picion of the abolition of slavery. Go to their meaning. Point 
out the clau^se lohere this formidable power of emancipation is 
inserted." 

"But another clause of the Constitution proves the absurdity 
of the supposition. The words of the clause are, "no person 
held to service or labor in one State, under the laws thereof, es- 
caping into another, shall in conse(juence of any law or regula- 



19 

tion therein, be discharged from such service or labor, but shall 
be delivered up on claim of the party to -whom such service or 
labor may be due." Every one knows that slaves are held to ser- 
vice and labor. And when authority is given to owners of slaves 
to vindicate their property, can it be supposed they can be de- 
prived of it? If a citizen of this State, in consequence of this 
clause, can take his runaway slave in Maryland can it be serious- 
ly thou'ght that after taking him and bringing him home he 
could be made free?" 

"I observed that the honorable gentleman's proposition came 
in a truly questionable shape, and is still more extraordinary and 
unaccountable for another consideration. That although we 
went article by article through the Constitution, and although Ave 
did not expect a genera^ review on the subject, (as a most compre- 
hensive view had been taken of it before it was regularly debated,) 
yet we are carried back to the clause giving that dreadful(? jpower 
for the general welfare. Pardon me if I remind you of the true state 
of that business. I appeal to the candor of the honorable gentle- 
men, and if he thinks it an improper appeal, I ask the gentleman 
here whether there be a general indefinite power of providing for 
the general welfare? The power is to lay and collect taxes, du- 
ties, imposts and excises; to pay the debts and provide for the 
common defence and general welfare. "So that they can only 
raise money by these means in oi'der to provide for the common 
defence and general welfare. No man who reads it, can say it 
is general, as the honorable gentleman represents it. You must 
violate every rule of construction and common sense if you sever it 
from the potoer of raising money and annex it to any thing else in 
order to make it that formidable power which it is represented to 
6«." — (Ibid, 3rd vol., page 541.) 

Gov. Randolph was not only a member of the Federal Con- 
vention, in which the Constitution was adopted, but it was 
on the basis of his resolutions principally framed. If it can be 
supposed that any one understood what it was intended that the 
Constitution should mean, it certainly was he. He does un- 
equivocally say, in this speech, that not only he, but every mem- 
ber in the Convention from the Southern States, fully under- 



stood what the intention of those were who framed the Constitu- 
tion, in regard to the subject of slavery. His words are that 
"were it right here to tell what passed in Convention. (Federal) 
on the occasion, / might tell you that the Southern States, even 
South Carolina herself, conceived this property to be secure by these 
loords.'' Again. "I believe, whatever we may think hert, that 
there was not a member of the Virginia delegation who had the 
smallest suspicion of the abolition of slavery." The italics here are 
his own. This seems to favor the idea that this clause in respect 
to the "migration or importation of such persons as any of the 
states then existing should think proper," was regarded as a 
sacred compromise, on which the slavery question should 
forever rest. But irrespective of all compromises and private 
understandings, he goes to the law as laid down in the Consti- 
tuti n, and asks Patrick Henry and his friends to "point out the 
clause where this formidable power of emancipation is inserted." 
"Where is the part that has a tendency to the abolition of sla- 
very? He does not wish to be answered by declamation either. 
A conclusive ansioer that no such power resides in the govern- 
ment, was the clause before quoted in respect to the migration 
or importation of slaves. But if that is not sufficient to prove 
the absurdity of the supposition, he quotes the clause, "that no 
person held to service or laboi* in one State, under the laws there- 
of, escaping into another, shall in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such ser- 
vice may be due." For fear that it may be misinterpreted, as 
is now frequently done, he declares that every one knows that 
the terms held to service or labor was intended to mean slaves. 
Again, least his silence on the clause which provides for the 
general welfare should be taken as an admission of Patrick 
Henry's declaration, whom he accuses of endeavoring to get a 
snap judgment against him, he states what the convention under- 
stood was the meaning of the clause. He says, "pardon me if 
I remind yon of the true state of that business. I appeal to the 
candor of the honora'ulc; gentleman, and if he thinks it an im- 
proper appeal, I ask the gentleman here, whether there be a 
general indefinite power of providing tor the general welfare?" 



i5 

The power is, ''to lay and collect taxes, duties, imposts and 
excises to pay the debts and provide for the common defence and 
general welfare." Why should the provision to provide for 
the common defence and general welfare be connected with that 
to raise taxes, &cf The opponents to the Constitution on all 
occasions declared that if this Constitution was adopted that all 
debts of the United States, both foreign and domestic, which 
had accumulated under the articles of confederation, would be 
repudiated, wiiich would bring on another foreign war. This 
clause gives the power to raise the money to pay the debts, 
which, if not satisfactory to foreign nations and they will war 
with us, we will provide for the general welfare by applying 
this money for self defence. "So that they can only raise money 
by these means. ' ' To sever it (the power to provide for the com- 
mon defonce and general welfare) from the power of raising 
money, and annex it to anything else, especially to the power to 
abolish slaveiy. in order that, the war power would become 
the more, formidable, as Patrick Henry represented, it would 
be, "evei-y rule of construction and common sense must be 
violated." Ex-President Madison, also a member of both 
Federal and State conventions, on the same occasion, used the 
following words, in reply to Patrick Henry, he said: "I was 
struck with surprise when I heard him express himself alarmed 
with respect to the emancipation of slaves. Let me ask if they 
should even attempt it, if it will not be anursupation of power? 
There is no power to warrant it in that paper. If there be 1 
know it not. But why should it be done? says the honorable 
gentleman for the general welfare, it will infuse strength in our 
system, (^an any member of this committee suppose that it will 
increase our strength? Can any one believe that the American 
councils will come into a measure which will strip them of there 
property, discourage and alienate the afiections of five thir- 
teenths of the Union. Why was nothing of this sort arrived at 
before, I believe such an idea never entered into any American 
breasts, nor do I believe it ever will enter into the heads of those 
gentlemen who substitute unsupported suspicions for reasons." 
Ibid page 561 . 



President Madison was of the opinion that even an attempt 
to emancipate slaves, under the war power, would be an usur- 
pation of power on the part of the (rovernment. His 
opinion is also valuable in respect to the allegation that 
emancipation will infuse strength into our system. The idea 
is so nonsensical, as to cause him to put the interrogative, 
"Can any member of tliis committee suppose that it will increase 
our strength.^ The same question might now be asked and could 
be practically more answered, that instead of its being a means 
of strength to the Government, in the present contest, it has sure- 
ly been a means of weakness. It has divided the loya,l and united 
the disloyal. It has thrown upon the Gover anient, for support, 
many thousands of contrabands who, it is said, do not earn 
even their support under masters. 

On anotlier occasion, when the Cod fishery bill was before the 
House of Represenatives, in the session of 1790, Jas. Madison, 
on this particular clause and the general theory of our Consti- 
tution said: "I, sir, have always conceived, I believe, those 
who proposed the Constitution conceived, it is- still more fully 
known and more material to observe, that those who ratified 
the Constitution conceived, that this is not an indefinite gov- 
ernment, deriving its powers from the general terms ])refixed 
to the specified powers; but a limited government, tied down to 
the specified powers which explain and define the general terras. 

It is to be recollected, that the terms "common defence and 
general welfare," as here used, are not novel terms, first intro- 
duced into this Constitution. They are terras familiar in tlieir 
construction and well known to the people of America. Tliey 
are repeatedly found in the old Articles of Confederation, where, 
although they are susceptible of as great a latitude as can 
be given them by the context here, it was never supposed or 
pretended that they conveyed any such powers, as is now as- 
signed to them. On the contrary it was always considered clear 
and certain that the old Congress was limited to the enumer- 
ated powers, and that the enumeration limited and explained 
the general terms. I ask the gentlemen themselves, whether it 
it was ever supposed or suspected that the old Congress could 




give away the money of the States to bounties to encourage 
agriculture, or for any other purpose they pleased? If such 
a power had been possessed by any body it would have been 
much less important, or have borne a very different character 
from that universally ascribed to it." 

"The novel idea now annexed to those terms, and never before 
entertained by the friends or enemies of the government, will 
have a further consequence which cannot have been taken into 
the view of the gentleman.*' 

*'Thore are consequences, Sir, still more extensive which, as 
they follow clearly from the doctrine combatted^ must either be 
admitted or the doctrine must be given up. If Congress can 
employ money indefinitely to the general welfare, and are the 
sole and supreme judges of the general welfare, they may take 
the care of religion into their own handy; they may appoint 
teachers in every State, county and parish, and pay them out of 
the public treasury; they may take into their own hands the 
education of children, establishing in like manner schools 
throughout the Union; they may assume the provision for the 
poor; they may undertake the regulation of all roads, other 
than post roads; in short every thing from the highest object of 
state legislation down to the most minute object of police, v^ould 
be thrown under the power of Congress: for every object I have 
mentioned would admit of the application of money and might 
be called, if Congress pleased, provisions for the general wel- 
fare." 

In short, Sir, without going farther into the subject, which I 
should not have touched at all but for the reasons already men- 
tioned, I venture to declare it as my opinion, that were the power 
of Congress to be established in the latitude contended for, it 
would subvert the very foundation and transmute the very na- 
ture of the limited government, established by the people of 
America ; and what inferences might be drawn or what conse- 
quences ensue from snch a step, it is incumbent on us all to 
consider." 

Mr. Williamson, on the same occasion said, that, "the com- 
mon defense and general welfare, in the hands ot a good politi- 



u 

cian, may supersede every part of our Constitution and leave us 
in the hands of time and chance." — Ibid, 4th vol., pages 436- 
7-8. 

Mr. Wilson, in the Pennsylvania Convention, said, on the 
theory of our government that, "A proposition to adopt a meas- 
ure that would have supposed that we were throwing into the 
general government every power, not expressly reserved by the 
people, would have been spurned at in that house, with the 
greatest indignation, even in a single government, if the powers 
of the people rest on the same > establishment as is expressed in 
this Constitution, a bill of rights is by no means a necessary 
measure." 

''But in a government, consisting of enumerated powers, such 
as is proposed for the United States, a bill of rights would not 
only be unnecessary, but, in my humble judgment, highly im- 
prudent. In all societies there are many powers and rights 
which cannot be particularly enumerated. A bill of rights 
annexed to a constitution, is- an enumeration of the pow- 
ers reserved. If we attempt an enumeration, every thing that 
is not enumerated is presumed to be given. The consequence 
is, that an imperfect enumeration would throw all implied 
power into the scale of government, and the rights of the people 
would be rendered incomplete. On the other hand, an imper- 
fect enumeration of the powers of government, reserves all im- 
plied pov/er to the people, and by that means the Constitution 
becomes incomplete, but of the two, it is much safer to run the 
risk on the side of the Constitution, for an omission in the 
enumeration of the power of government is neither so dangerous 
nor important, as an omission in the enumeration of the rights 
of the people." Elliot's Deb., Fed. Con., 2 vol., page 4091. 

Mr. McKean, on the same subject, in the Pennsylvania Con- 
vention, also said: "Again, because it (a bill or declaration of 
rights) is unnecessary, for the powers of Congress, being derived 
from the people, in the mode pointed out by this constitution, 
and being therein enumerated and positively granted, can be no 
other than what this positive grant conveys." (Locke, on civil 
government, vol. 2, B 2, chap. 2, sect. 140, and in the 13th 
chap, sec 152.) 



16 

"With respect to executive officers, they have no manner of 
authority, auy oi'them, beyond what is by positive grant and 
commission delegated to them" — Ibid, page 498. 

This opinion, supported by the authority of an eminent writer 
s^on civil government, is conclusive in respect to executive offi- 
cers, "the chiefest among whom" is the President of the United 
States. 

Alexander Hamilton, in the New York Convention, on this 
same subject, said, that "The powers of the new government are 
general, and calculated to embrace the aggregate interests of 
the Union, and the general; interest ot each State, so far as it 
stands in relation to the whole. The object of the State govern- 
ments is to provide for their internal interests, as unconnected 
with the United States, and as composed of minute parts or dis- 
tricts." (Ibid page 259.) 

"Again it has been asserted, that the interests, habits and 
manners of the thirteen States are different, and hence it is in- 
ferred, that no general free government can suit them. This 
diversity of habits, &c., has been a favorite theme with those 
who are disposed for a division of our empire, and like many 
popular objections, seems to be founded on fallacy. 1 acknow- 
ledge, that the local interests of the States are in some degree 
various, and that there is some difference in the manners and 
habits. But this, I will presume to affirm, that from Nev,- 
Hampshire to Georgia, the people of America are as uniform in 
their interests and manners as those of any established in Eu- 
rope. This diversity to the eye of the speculatist, may afford 
some marks of characteristic discrimination, but can not form 
an impediment to the regular operation of those general powers 
which the Constitution gives to the United Government. Where 
the laws of the Union to new model the internal police of any 
Static; were they to alter or abrogate, at a blow, the whole of 
its criminal and civil institutions; were they to penetrate the re- 
cesses of domestic life, and control in all respects the private con- 
duct of individuals, there might be more force in the objection, 
and the same Constitution which was happily calculated for one 
State, might sacrifice the welfare of another. Though the dit- 



ference of interests may create some difficulty and apparent par- 
tiality in the first operations of government, yet the same spirit 
of accommodation, which produced the plan under discussion, 
would be exercised in lessening the weight of unequal burthens, 
add to this, that under the regular and gentle influence of gen- 
eral laws, these varying interests will be constantly assimilating, 
till they embrace each other and assume the same complexion." 
(Ibid page 261, &c.) 

This speech was in answer to Gov. Clinton, who objected to 
the Union and Constitution, on the ground that there would not 
be sufficient safety in the general government. That by small 
and gradual encroachments, which would not inspire a general 
spirit of resistance, designs unfavorable to the institutions, of 
the States could not be frustrated and punished. That the in- 
terests of the States was so dissimilar, that the laws made in 
pursuance of the Constitution would operate most disadvan- 
tageously and cruelly upon all the States. The only great dis- 
similarity existing in the interests of the States, was in regard 
to slavery, to which Alexander Hamilton replies; "Were the 
laws of the Union to new model the internal police of any State; 
were they to alter or abrogate at a blow the whole of its civil 
and criminal institutions, there might be more force in the ob- 
jections, and the same Constitution which was happily calcula- 
ted for one State, might sacrifice the welfare of another." How 
far this may apply to the present time, let others determine. 

On the 18th clause of the 8th section of the Ist article, (To 
wit: "To make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the Government of the 
United States, or in any department or officer thereof,") denom- 
inated the sweeping clause^ and which must furnish all necessary 
power for carrying into execution the powers of the Constitution, 
Gov. Randolph, on another occasion, said, that "the sweeping 
clause, as it is called, is much dreaded. I find that I differ from 
several gentlemen on this point. This formidable clause does 
not in the least increase the powers of Congress. It is only in- 
serted for greater caution and to prevent the possibility of en- 
croaching upon the powers of Congress. No sophistry will be 
3 



1^ 

permitted to bei«io«d to explain away any of those powers, nor 
can they possibly assume any other power but what is contained 
in the Constitution, without absolute usurpation. Another 
security is, that if they attempt such an usurpation the influence 
of the State Governments will nip it in the bud of hope. I 
know this government will be cautiously watched. The small- 
est assumption of power will be sounded in alarm to the people 
and followed by bold and active opposition. I hope that my 
countrymen will keep guard against every arrogation of power. 
I shall take notice of what the honorable gentlemen said with 
respect to the power to provide for the general welfare. The 
meaning of this clause has been perverted to alarm our appre- 
hensions. The whole clause has not been read together. It 
enables Congress ''to lay and collect taxes, duties, imposts and 
excises; to pay the debts and provide for the common defence 
and genera] welfare of the United States; but all duties, imposts, 
and excises shall be uniform throughout the United States." 
The plain and obvious meaning of this is, that no more duties, 
taxes, imposts and excises shall be laid than are sufficient to 
pay the debts and provide for the common defence and general 
welfare of the United States." (Elliott's debates 3rd vol. page 
209, &c.) Here we have, in the plainest language, and the brief- 
est space possible, the opinion of one who may be called the 
founder of our Constitution, on those important parts of the 
Constitution which confer all power to the Government. 

William R. Davie, in the North Carolina Convention, on 
the subject of powers granted to the Federal Government, 
said "Mr. Chairman, permit me, Sir, to make a few obser- 
vations on the operation of the clause so often mentioned. 
This Constitution, as to the powers therein granted, is con- 
stantly to he the supreme law of the land. Every power 
ceded by it must be executed without being counteracted by the 
laws or constitutions of the individual States. Gentlemen should 
distinguish, that it is not the supreme law, in the exercise 
of a power not granted. It can be supreme only in cases consist- 
^ent with the powers specially granted, and not usurpations. 
(Ibid 4th Vol., page 187.) 

Chas. Pinckney, in the South Carolina Convention said: *'The 



It 

distinction which has been taken, between the nature of the Fed- 
eral and State Government appeared to be conclusive that in the 
former no powers could be executed or assumed, but such as 
were expressly delegated ; that in the latter the indefinite power 
was given to the government, except on points that were by ex- 
press compact reserved to the people." 

Charles Cotesworth Pinckney, in the same Convention, on 
the question of slavery as settled by the Constitution, said : 
that "By this settlement, we have secured an unlimited im- 
portation for twenty years, nor is it declared that the impor- 
tation shall then be stopped. It may be continued, we have 
a security that the general government can never emanci- 
pate them, for no such authority is granted, and it is admitted 
on all hands, that the general government has no powers but 
wh; : are expressly granted by the Constitution, and that 
all rights not expressed were reserved by the several States. 
We have obtained a right to recover our slaves in any part 
of America they may take refuge, which is a right we had not 
before. In short considering all circumstances, we have made 
the best terms for the security of this species of property it was 
in our power to makC; we would have made better if we could, 
but on the whole, I do not think them bad." — (Ibid page 277.) 

If the President shall yet believe (as he did when writing his 
inaugural) in that fundamental law maxim, "that the inten- 
tion of the lawgiver is the law" he will certainly believe, that 
he can, under no necessity, derive any power from the Consti- 
tution to issue his proclamation, on the 1st of January A. D. 
1863, emancipating slaves; or he must believe that the states- 
men, (herein quoted; all, with one exception, leading members 
of both Federal and State Conventions, which adopted the Con- 
stitution, and who may truly be termed the fathers of our 
Constitution,) were speaking of that which they did not know. 

In order that I may not appear to condemn that policy which 
I cannot propose a remedy for, I shall here insert ray letter of 
July 21st, to His Excellency the President, which general orders 
(in reference to employing the negroes as laborers, promulgated 
a few days afterward) will show,- was at that time approved of 
by him. 



Baltimore, July 21st, 1862. 
Mr. President : — 

1 but avail myself of the privilege of an 
American Citizen, when I address you concerning the conduct 
of the war. This war in the first place has been caused by the 
agitation of tlie slavery question, in the National Councils, by 
men of extreme views. In the second place, we never shall 
have a permanent peace until the cause is destroyed. A party 
evidently largely in the minority, argue that slavery is the cause 
of the agitation of the slavery question, and therefore the pri- 
mary cause of the war, with equal force, it may be said that the 
existence of the negroes h the cause of slavery, and so on, until 
the cause would be attributed to the Creator himself. We are 
not now to deal with abstractions. This war is found to be too 
much of a sad reality. But it is not true that slavery is the 
cause of the slavery agitation, it has existed in the nation since 
its formation. Many States have both abolished and established 
it, by State action, without even causing much agitation within 
their own borders. It has only been since politicians and dem- 
agogues have discovereed the suitablenesss of the subject, for the 
purpose of manufacturing political capital, (it being about twen- 
ty odd years) that this agitation has assumed so great pro- 
portions and become so acrimonius. It is evident that the 
that the Nation would meet with as much success if it should 
attempt to destroy the Creator himself, and would cause 
about as much distress, if it should attempt to destroy the ne- 
groes, (to either of which causes the war could be abstractly at- 
tributed,) as it would if it should attempt to destroy the agita- 
tion of the slavery question, by destroying, or in other words, 
abolishing slavery itseif. Without fear of contradiction, I think 
it can be safely said, that all past legislation, with a view to 
that end, instead of decreasing has increased this agitation, at 
a cost almost of the life of the Nation. Nor, do I want to be 
understood to say, that to get rid of this agitation slavery should 
be established everyv^here. The attempt to establish slavery, 
anywhere, by National legislation, would be frought with as 
much agitation as the attempt to abolish it in certain places has 
already been ; but I do want to be understood to say, and I do 



21 

say, that the only true policy to be pursued by the Nation is to 
have nothing at all to do with the matter. The opposite policy 
has been tried, in accordance with the views of each of the ex- 
tremes, and found wanting. If for nothing more than an ex- 
periment, it would now be well to let this matter alone. Besides^ 
being the only true policy, and the only one on which all loyal 
men can be united under, it is of itself destroying the cause of 
the war and is moreover the only legal and constitutional course 
that can be pursued. By virtue of what clause m the Constitu- 
tion, or what law in accordance tharewith, has the administra- 
tion now power to do anything farther with the matter? 

The only clauses on which there possibly could have been any 
difierence of opinion have been fully settled by Congressional 
actiou. 

The subject of slavery presents, legislatively, three different 
phrases: First in relation to places where it is claimed that Con- 
gress has exclusive jurisdiction, foT all purposes. Secondly, in 
relation to places where it is claimed that Congress has a super- 
visory, amounting praticaliy to an exclusive jurisdiction; and 
Thirdly, in relation to places where it is claimed that Congress 
has concurrent jurisdiction, with the State legislatures. In 
places of the first and second class the last congress were of the 
opinion that they had power to legislate on the subject of slavery, 
which they carried into practice, by abolishing it in those places; 
whether this was in accordaaca with the Constitution it would 
bi (now that it is done) to no purpose to argue, and does not 
very materially effect the question, in so far as it is connected 
with the war; but in places of the third class, which is of the 
greatest importance, the preceeding Congress were of the opiaioa 
(which they formally embodied into an amendment to the Con- 
stitution) that they had no power at all to inteifere. This em- 
braces, with the exception ot the fugitive slave law and clause, 
all the power it is claimed the national government has over the 
matter, and M'as enacted chiefly by men of radical views. It is 
now the right of the opposition to demand that they (the radicals) 
(having exhausted, in their own manner, all the power they 
themselves claim over this matter) should let thi« agitation of it 
alone. This gets rid of the matter as a state institution. But 



22 

in regard to each individual negro, the question arises what is 
to be done with the fugitive slave law, in reference to the con- 
trabands. Even in this respect, the above policy could be- prac- 
tically carried out. The Government cannot question the ten- 
ure by which these persons are held to service or labor, but until 
their be a claim made for their services, they (the contrabands) 
must be regarded as free persons and should be used as such, 
but (waving all questions of right) let me ask, does policy dic- 
tate that they should be employed as laborers in preference to 
white men, or on an equality with white men in the ranks, 
which is not elevating the negro but degrading our own class, 
thereby causing dissatisfaction in the army, or should the 
families of negroes be mantained and supported whilst the fam- 
ilies of patriotic volunteers are suffering. I am satisfied that 
you will not say such is good policy. 

Again, the fugitive slave law should and can only be executed 
through civil officers. If some States have, by their own course, 
destroyed these officers, they alone should be made to reap the 
benefit. The military have not been called out to execute the 
laws, but to put down those who are endeavoring to prevent 
their execution; much less is it to prevent themselves the execution 
of the laws, as is'^supposed by some. Whilst this policy would 
not assist negroes in running away, it would not at the same 
time make the men of the army negro catchers. The army can 
no more accomplish two things, at one and the same time, than 
an individual. If it is to engage in the African slave trade, the 
war will necessarily have to take care of itself; but if, by hard and 
strong blows, it is intended to use it for the purpose of putting an 
end to the rebellion, abolition and slavery must take care of 
themselves. Let it once be proclaimed that the army is to have 
nothing at all to do with the negro question, and there would 
be no difficulty in filling up the ranks, and all would yet be 
well. I have the honor to be, Mr. President, 

Your most humble 

and obedient servant, 

Andrew J. Wilcox. 
To His Excellency, Abraham Lincoln. 



23 

One word here in regard to the war. If, it (the war) shall 
be made the means of putting an end to the agitation of the 
slavery question, which is the only means that will secure the 
National peace' and happiness, not only of the present genera- 
tion, but of generations yet unborn, then it shall have been to 
some purpose. If not, then the loss of thousands of lives and 
the expenditure of millions of dollars will all have been in vain. 




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